Legislation on - 'Women and Family' in Pakistan Trends and Approaches - II.
A look at legislative effort in Pakistan with respect to women and family between 2008 and 2010 reveals that legislators' approach is not reflective of the indigenous needs and dynamics of the society. Concern for issues is there, but commitment, evidently, is missing. Lack of consistency is noted, as most of the bills were moved with fanfare in the first legislative year (2008) but little follow-up and real progress was witnessed in subsequent two years, 2009 and 2010. Moreover, bills were submitted, by and large, without proper research and required attention - showing lack of interest and professionalism. As use of law should be the last recourse in resolutions of disputes related to the institution of family, this dimension needs to take precedence over all others. - Eds.]
Status and role of women has been a question mark in almost all societies, particularly in the contemporary world. They have generally been victims of exploitation and disrespect. More ironically, whenever society showed sensitivity towards woes of women, they were granted a role in public life with an aim to raise their status, but this enhanced role, in most cases, turned out to be 'double jeopardy' for them. In both these situations, needs, instincts, sentiments, feelings and capabilities of women were overlooked. It is for the same reason that movement for rights of women or at least a concern for their rights has been noticed in primitive societies of yesterday as well as the most developed nations of the world today.
A glance through issues relating to women in Pakistani society reveals, diverse and multiple challenges, ranging from absence or insufficiency of basic necessities to confusions about the role of women in social and economic circles. While solution to most of these problems may need social and educational campaigns, administrative measures for provision of education, employment and development, reforms in judicial and police systems and sensitization of media and civil society towards problems of women, legislative measures too cannot be ignored to bring about an enduring change in society. Legislation is also required to take care of continuing process of change and transformation which is a fundamental feature of human society.
Role of legislative bodies and especially the national parliament is the most significant in this regard. In any democratic country, members of parliament, being representative of the whole population of the State, are expected to undertake every possible step that reflects common aspirations and leads to common objectives. Their failure or success in accurately comprehending the requirements of masses and to chalk out a strategy based on locally valued traditions and common approaches to life, determines their level of success, at any given point of time, in performance of their basic function i.e. legislation.
Presently Pakistan has its thirteenth National Assembly in operation which came into existence after the elections in February 2008. These elections are generally seen to have ended a dictatorial rule and to have brought forward a popularly elected government. It was therefore justifiably expected that the incumbent government shall be more concerned about welfare of the people and shall take steps to minimize the problems faced by them, particularly the vulnerable sections of the society in various fields of life. Women issues, being one of the most hotly debated subjects in this regard are naturally expected to draw a greater attention of the Parliamentarians in the same context. The subject gained additional significance in view of the presence of a large number of women Parliamentarians owing to 17th amendment in the constitution.
It is just less than three years now1 that this Parliament is functioning. Many quarters within and outside country are interested in knowing the efficiency of this popularly elected Parliament during this period in all areas of national life and more particularly for the welfare of women and family. An IPS Task Force on Gender Legislation, comprised of lawyers, social workers, academics and researchers, has looked into legislative efforts of the current Parliament with respect to women and family and has reviewed 35 bills,2 two enactments and two Ordinances which have been laid before National Assembly. It is important here to note that a 'bill' has to pass through an exhaustive legislative procedure before it transforms into a 'law'.3
Following is the analysis of the current legislation made by IPS Task Force. To perform its study in a more organized and specialized manner, the Task Force had categorized the legislative drafts with respect to their subjects. As second part of the Study, outcome of Task Force deliberations on those Bills is presented which are directly related to women and child rights, maintenance, prevention of violence and upholding of the dignity of women.
The Task Force had taken into account the Constitutional framework for legislation, existing laws and their judicial interpretations, social values and international dimensions of issues discussed in these legislative drafts. The study discusses each of the suggestions distinctly and starts with a summary of the Bill. This follows a review of 'existing laws and practices' and 'observations', whereby the likely effect or change in current legal framework is highlighted in case of adoption of suggestion proposed by the mover of the Bill. 'Observations' are followed by 'comments' on need, overall effects and significance of the proposal in the social milieu. Discussion ends with 'recommendations' with respect to the specific Bill as well as the issue discussed therein. Title of the Bill, date of its introduction in the National Assembly, name of the mover and current status has been highlighted in a box at start of discussion on each Bill. (Eds.)
Mandatory Interim Order for Maintenance of Children - Family Courts (Amendment) Bill, 2008
This Bill seeks to substitute section 17-A of the Family Courts Act, 1964. Proposed section 17-A shall make it compulsory for Family Courts to fix, at initial stages of the case, an interim amount payable periodically by the father to his children as maintenance during pendency of suit for maintenance. Text originally proposed to replace the existing section 17-A read as follows:
"17-A. Interim Order for Maintenance: The Family Court:-
(a) in a suit for maintenance of children, shall immediately after filing of the written statement, pass an interim order for maintenance; and
(b) in any other suit for maintenance, may at any stage of the proceedings pass an interim order for maintenance,
Whereunder the payment shall be made by the fourteenth of each month in advance, failing which the Court may strike off the defence and decree the suit."
The Bill was passed by the National Assembly without amendment. The Senate passed the Bill with amendment, by virtue of which clause (a) of the proposed section now reads:
"(a) in a suit for maintenance of a child, shall immediately after entering of appearance by the defendant, pass an interim order for maintenance"
The mover of the Bill has stated the objects and reasons of the Bills in following words:
"The Bill is aimed at providing immediate relief to the children by providing maintenance allowance at initial stage of proceedings in suit for maintenance."
The Bill shall now be considered in the joint sitting of Parliament.
Existing law and Practice: Question of maintenance is dealt with under section 9 of the Muslim Family Laws Ordinance 1961. By virtue of this section, maintenance is regarded an undeniable legal right of wife upon her husband which cannot be withheld without a strong and just reason. Right of maintenance of children due to father, however, has not been mentioned specifically in any provision of the law. It has accrued through Court decisions and consistent practice of the Courts has given it force of law. Principles that have shaped this consistent Court practice have been derived from Islamic injunctions which underpin the social and cultural fabric of Pakistani society. According to this practice, which has gained currency, a father is bound to maintain his sons until they attain the age of puberty and his daughters until they are married. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them.
Section 17-A of the Family Courts Act, 1964 had been inserted through Family Courts (Amendment) Ordinance, 2002 (Ordinance LV of 2002), which states that: "At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit."
This section does not mention whether it relates to the maintenance of wife only or to the maintenance of children as well. But the practice of the Courts has been in consistence with its practice stated above. On institution of suits seeking maintenance of children, Court normally passes an order after filing of written statement by the father of children, through which an amount is fixed as interim maintenance to be paid by him to the children during pendency of suit. But currently, this order is made on the discretion of Court, which exercises it in consideration of various facts. The Court may not pass such interim order in cases where the defendant challenges the legitimacy of children and maintains that they are not his children.
Observations: The 'substitution' of the relevant section for interim order of maintenance is in fact an 'addition' in the existing text and apart from para (a) of the text, the rest remains unchanged.
The Bill builds upon the presumption that the Court practice with respect to the maintenance of children has been established and needs no specific legislation. The present Bill, then, seeks to elaborate the procedure for providing immediate relief to the children and proposes that as soon as the father of children has filed the written statement and has admitted their being his children, he has no way but to pay for their maintenance; and the Court shall pass the orders in this respect. It means that while Court still enjoys discretion in respect of interim maintenance of wife, it shall be bound by adoption of this provision in case of interim maintenance of children.
The approach adopted in the Bill seems fairly reasonable as father of a child is bound to pay for his necessities. Even the poverty and weak financial position does not absolve father to escape from his liability and is not allowed to deprive the minors from their legitimate right of maintenance. In case of a suit for maintenance of children, the Court does not have to consider whether or not the maintenance allowance is payable; it only has to determine the amount to be paid monthly. But it is necessary that the person accepts paternity of the child for whom maintenance is being claimed.
Maintenance of wife too is incumbent upon her husband and he is bound to supply food, clothing and lodging to her as soon as she surrenders herself to him. But the husband's obligation to maintain his wife can be suspended if the wife abandons the conjugal domicile of husband without valid reason or disobeys him without just cause. In view of such factors involved in the suit for maintenance of wife, the Court may on its own discretion defer the passage of interim order till such time when the demand starts to seem reasonably just.
Comments: It is a social norm in the society that maintenance of wife is an obligation upon the husband while in his capacity as father he has to look after the necessities and desires of his children. Normally the scheme works smoothly and millions of families in Pakistani society keep on enjoying strong and cordial relations on the same principle for decades and generations. The issue of maintenance rises at the time of conflict between the spouses and when the separation between them has taken place with or without divorce. It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights are created but when this marriage is dissolved, those rights do not diminish but continue according to injunctions of Islam.
It is, however, unfortunate that in case of separation through or without divorce, males decline from payment of maintenance allowance to their wife or divorcee and even to their children and tend to neglect clear instructions of Islam in this respect. In areas or communities where social fabric is still intact and role of elders is still recognized, such issues are resolved within their own framework whereby the rights of both parties are satisfactorily guaranteed. Such arrangement proves advantageous to both sides as well as the society as a whole because the decision is reached through mutual consultation and agreement and community elders ensure its implementation.
It is also noticed that issue of maintenance does not rise in cases where separation of spouses has taken place through mubarat. But in most cases of divorce, the maintenance has to be sought through courts. The Family Courts also attempt to affect a compromise or reconciliation between parties at pre-trial stage.
In all such cases where the Court has to decide a suit for maintenance of children, the adoption of proposal given originally in the present Bill shall be a positive development. It shall not only provide immediate relief to the children, as is mentioned in the statement of objects and reasons by the mover, but shall also prevent undue burden on mothers. This shall also increase the likelihood of reconciliation between the parties and guarantee protection of rights of the minors.
Amendment made by the Senate though shows added concern for the welfare of children and provides that the defendant should be asked to start paying the maintenance of child as soon as he appears before the Court and shows his intention to respond to the petition filed against him. In such case, the Court shall not afford him opportunity to be heard before passage of interim order for maintenance of child and require him forthwith to start paying the amount fixed as temporary arrangement. This scheme may work fairly well in most cases but there may be instances where the defendant may refuse the paternity of the child and maintain that he is not liable to pay for maintenance of child who is not his son or daughter. The amendment passed by the Senate does not take care of such possibilities.
This means that the suggestion originally put forward by the Bill seems more likely to cover intricacies of the case and it seems more prudent that the defendant is afforded opportunity to be heard and his written statement is examined before putting a liability upon him. Written statement in family cases has to be filed within thirty days of institution of suit. But it has been observed that the law is not strictly followed and defendant may take additional time to file his formal response. This means that the right of child shall be denied for a longer period of time in such cases. Courts have been empowered to proceed ex parte against defendant if he is found to have failed in submitting written statement despite service of summons to him. It is thus duty of the Courts to ensure that the timeline provided in the law is as strictly followed as is possible.
Existing and the proposed laws provide for striking off the right of defence of the defendant in case of his failure to pay the amount of interim maintenance without affording him an opportunity to explain cause of his failure. In actual practice, before proceeding under this section, Courts take into consideration the reasons that the defendant may have to present before Court for such failure or at least afford him one chance to compensate. Flexibility to such extent seems necessary not only to ensure administration of justice but also to avoid further litigation through appeal. If it is feared that such flexibility may be misused in order to tease the plaintiff, the Court may be empowered to proceed ex parte against defendant instead of striking off defence. In such case, the defendant shall not loose all his rights in the case but shall only be deprived of his right to present his evidence. He shall still retain the right to cross-examine the witnesses presented and evidence produced by the plaintiff.
* Since father is bound to maintain his children in all circumstances, Courts may be empowered to require provision of a specific monthly amount during pendency and before final disposal of the case as interim arrangement. Order for interim maintenance should follow and not precede written statement.
* Courts should ensure that the written statement is submitted within stipulated time period.
* Right of maintenance of children may be recognized explicitly through an amendment in law.
* Law should provide some flexibility for a person who may have failed to pay interim maintenance allowance before prescribed date on account of pressing reasons.
* Social as well as political institutions and Arbitration Councils need to be strengthened on grassroots level to resolve issues that may be resolved without necessarily involving judiciary.
Provision of Maintenance for Breast Feeding Mother - Muslim Family Laws (Amendment) Bill, 2009
This Bill seeks to insert a sub-section in the section 9 of the Muslim Family Laws Ordinance 1961. The proposed sub-section provides that a wife who is divorced and had passed the iddat period but is breast feeding the infant from the past wedlock, may claim maintenance for breast feeding the infant for period of two years from her past husband, and if the husband dies from his property or legal heirs as the case may be.
Objects and reasons of the Bill have been stated in following words:
"The Bill seeks to amend section 9 of the Muslim Family Laws Ordinance, 1961 to enable the women who has been divorced and has passed the iddat period but is breast feeding an infant out of previous wedlock, to have the right of maintenance for two years from her previous husband or if he had died from the infant grand parents or from his late husband's property as directed by the Holy Quran."
Existing Law and Practice: Section 9 of the Muslim Family Laws Ordinance 1961 relates to the maintenance of wife and has been referred to in the preceding discussion. According to this section a wife who is not adequately maintained by her husband may apply to the Chairman of the union council, who shall constitute an Arbitration Council to determine the matter. The Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband. Husband or wife may prefer an application to the Collector concerned for revision of the certificate. It has also been discussed above that while this section does not mention right of children to maintenance allowance, this right has been recognized and established through Court practice.
Observations: Since father is responsible to maintain his sons until they attain puberty and his daughters until their wedding, divorced mother of an infant too has the right to claim maintenance allowance for the child. A divorced woman however is entitled to maintenance for herself only during iddat period and not beyond that. Practically it means that a woman who has been divorced but is still breast feeding her child out of previous wedlock may already claim maintenance for her child but not for herself. This Bill, if enacted upon, shall acknowledge the right of maintenance for mother breastfeeding a child for a period of two years. It is also worth noting that Quran has encouraged breastfeeding a child for whole two years.
Comments: Current practice of not recognizing the right of suckling mother during period of suckling is contrary to clear injunction of the Holy Quran. In verse 233 of chapter 2, Quran authorizes a suckling mother to benefits that would maintain her health and enable her to look after the infant properly. She may claim her right of maintenance allowance for breast feeding the child from his or her father and in case of his death from his legal heirs or his property. The said verse provides that:
"Mothers shall suckle their children for two whole years; (that is) for those who wish to complete the suckling. It is incumbent upon him who has begotten the child to provide them (the divorced women) their sustenance and clothing in a fair manner. No-one should be burdened beyond his capacity. A mother should not be made to suffer because of her child, nor should he to whom the child is born (be made to suffer) because of his child. And on the (father's) heir is incumbent the like of that (which was incumbent on the father). If they desire to wean the child by mutual consent and (after) consultation, it is no sin for them; and if you decide to have other women suckle your children, it is no sin for you, provided that you pay its compensation in a fair manner. Fear Allah and know that Allah sees all that you do."
The present Bill seems quite in conformity with this verse of Quran. The adoption of this proposal shall also promote the trend of breast feeding the children for the whole period of two years.
The proposal should, however, contain an exception that such right of maintenance for suckling mother shall cease in case of her subsequent marriage. In such case, previous husband shall remain responsible to maintain his children but the responsibility to maintain the woman shall rest on her new spouse.
While under the arrangement of family laws, issues relating family have to be resolved at local levels through Arbitration Councils, the cases actually have to be filed before Family Courts. Arbitration Council has to be constituted by the chairman of the union council concerned and comprises of the chairman and a representative of each of the parties to the matter in question. But since local governments, like other political institutions, suffer from gaps and intervals, and remain dysfunctional in many respects even when they are intact, the mechanism is presumed not to have worked up to the standards. This, however, does not mean that Arbitration Councils have not shown any utility at all.
* The Bill embodies a proposal that is not only in the interest of women but is also a requirement of Quran. It should however mention that responsibility of father to maintain mother of his child shall cease if the woman contracts a new marriage.
Mandatory Custody of Minor Children to Mother
Guardians and Wards (Amendment) Bill, 2008
The Bill, as introduced by the Law Minister in the National Assembly sought to insert following proviso after sub-section (1) of section 12 of Guardian and Wards Act, 1890:
"Provided that where the minor has not attained the age of seven years in the case of male or the age of sixteen years in the case of female, the Court shall, on the first date of hearing, pass interim order for the custody of minor to the mother and visiting rights to the father."
Senate has passed the Bill with amendment and the proposed text now reads as follows:
"Provided that where the minor has not attained the age of seven to nine years in the case of male or the age of nine to eleven years in the case of female, the Court shall, on the first date of hearing, pass interim order for the custody of minor to the mother and visiting rights to the father."
In the statement of Objects and Reasons it has been stated that:
"Through this Bill amendment is being proposed in the Guardians and Wards Act, 1890 with the object to protecting the right of mother for keeping custody of minor during age of his minority which would be in the welfare of the minor."
Existing Law and practice: Guardians and Wards Act, 1890 (Act VIII of 1890) regulates those cases where a person has to be given under protection and control of a guardian on account of minority, lunacy or other incapacity. The person so given in the protection and control of guardian is termed as 'ward'. Section 12 of the Guardian and Wards Act provides that when an application is made before a Court seeking appointment of a guardian for a person, the Court may direct a person to produce a minor before it and may also make such order for the temporary custody and production of the person or property of the minor as the Court thinks proper.
Practically this means that the Court may put a ward under temporary custody of a person during pendency of the application for the appointment of guardian. Section 7 of the Act declares that the principal consideration in appointing a guardian for a minor or lunatic or otherwise infirm person is the welfare of such person; and the same has been determining factor in all decisions of the Courts in this respect.
In determining the welfare of the child the Court shall have a regard to at least following nine factors which have been laid down in section 17 of Guardians and Wards Act, namely: (a) age, (b) sex, (c) religion of the minor, (d) character of the proposed guardian, (e) capacity of the proposed guardian, (f) nearness of the kin to the minor, (g) wishes of the deceased parent, (h) any existing or previous relations of the proposed guardian with the minor or his property, and (i) the preference of the minor, if he is old enough to form an intelligent preference.
Observations: Currently the Courts take into consideration the welfare of the minor as guiding principle for appointment of guardian. The Bill under discussion seeks to establish the question of welfare of minor children once for all and suggests that the welfare of a male child under seven years of age and of a female child less than sixteen years of age is that they stay in the custody of their mother and nowhere else.
Comments: Question of appointment of guardian arises when a child or an infirm individual is left without supervision and care of his or her natural guardian. Cases for seeking custody of children often arise where parents of a child have to depart through divorce or otherwise.
Such issues are normally resolved within families' own framework without getting an appointment of guardian through Court. If, however, a case for appointment of a guardian is brought before Court, the Court is guided by welfare of the minor. The word 'welfare' means both material and spiritual welfare of the minor and must be taken in the widest sense. Moral or religious welfare of the child must also be considered along with his or her well being, which may be physical and financial as well as mental.
In Islamic Law, as in almost every other legal system, the father is the natural guardian of the person and property of his minor child. According to all standard text books, under Hanfi Law, the mother is entitled to the custody of a male child until he attains the age of seven years and of a female child until puberty. During the period that the child is in custody of the mother or other female relative, the father's supervision over the child continues, as the burden of providing maintenance rests exclusively on the father. In other words, the father remains in constructive and legal custody of the child even though his physical or actual custody rests with the mother or other female relatives. Most of the text books further agree that the father becomes entitled to custody of a male child who has attained the age of seven years and of a female child who has attained puberty.
But as is stated in the law itself, the welfare of the ward has to be considered in each case with respect to peculiarities of that case. Section 17 elaborates underlying principles for ascertainment of welfare of the ward. In this setting, even a mother may be deprived of the custody of a minor daughter if circumstances of the case so warrant and in the case of son his custody may not be handed over to the father even after his attainment of seven years of age, if it is found by the Court that the welfare does not warrant so.
The amendment proposed in the present law, is therefore unwarranted and is likely to harm the welfare of the minor in some cases. There is no denying that mother is considered the most compassionate and caring person for her children in the entire world but there may be situations where she may not be able to effectively take care of her children on account of certain exigencies. She may have to contract a second marriage and her new home may not be an abode of peace for her children from previous wedlock. She may be living in such surroundings or leading a life which may be detrimental to the physical or mental development of the child. It, therefore, does not seem wise to restrict the scope of interim order of the Court with respect to temporary custody.
If the movers of the Bill have relied upon Muslim personal law mentioned above, then the law should also provide that where the minor has attained the age of seven years in case of male or age of sixteen years in case of female child, the Court shall, on the first date of hearing, pass interim order for the custody of minor to the father with visiting rights to the mother.
It is also pertinent to mention that no demand has been noticed even by the feminist segments of society for changing the status quo in favor of mother in the cases of interim custody of child. The Courts generally enjoy confidence of people and their determination of the welfare of minor is generally respected.
It is also noteworthy that except for very young children, a child may also be consulted for determining his/her preference between the parents or other claimants, as the case may be. A female child of thirteen years, for example, may reasonably ascertain and indicate a preference for her future. Inclusion of proposed proviso in the law shall also usurp the right of the child to express his or her willingness to stay with either of his or her parents.
In certain cases, mothers too may not be comfortable with the proposed scheme. Mother of a child, for example has re-married and she may not be in a position to or may not prefer her children to stay with her in her new home. Children may be residing with their maternal grandparents and father of the children may apply for guardianship. If the proposed amendment is made, the Court shall have to pass an order that the custody of children should be transferred to their mother, despite the fact that this may be the most unreasonable option. Thus proposed legislation shall affect the capacity of Courts to ascertain the most appropriate solution in diverse circumstances and shall bind them to pass a specific order even if it prima facie contravenes the welfare of minor.
* The Bill should be withdrawn. Courts have been taking care of welfare of children in consideration of a number of factors including maternal affection and have generally been acknowledging the right of the child to stay with mother. The practice has not shown any discrimination on the basis of gender; so present Bill is unwarranted and uncalled for.
Prevention of and Protection from Domestic Violence
Domestic Violence (Prevention and Protection) Bill, 2009
The Bill "to institutionalize measures which prevent and protect women and children from domestic violence" was moved in the National Assembly by Advisor to the Prime Minister on Women Development Ms. Yasmeen Rehman of Pakistan Peoples Party on August 12, 2008 and passed by the National Assembly on August 4, 2009. The Bill could not be passed by the Senate within ninety days of its transmission to the Senate from National Assembly Secretariat and has thus lapsed without enactment.
According to Article 70 of the Constitution of Pakistan, the National Assembly could have requested for referral of the Bill to the Mediation Committee comprised of members from both Houses of the Parliament but no such move was made. The government now plans to introduce a modified Bill in the Parliament. Any comment in this behalf, therefore, needs to discuss not only the merits and demerits of previous Bill but should also put forth a wider discussion on the issue of domestic violence.
The Bill on domestic violence provided a comprehensive mechanism based on protection committees and protection officers to prevent incidents of domestic violence and to protect the aggrieved person. It also provided an elaborate definition of the acts which constitute domestic violence.
According to the Bill: "Domestic violence includes but is not limited to, all intentional acts of gender based or other physical or psychological abuse committed by an accused against women, children or other vulnerable persons, with whom the accused is or has been in a domestic relation." The definition further describes that acts like assault, attempt, criminal force, criminal intimidation, hurt, mischief, and wrongful confinement which are declared offences in the Pakistan Penal Code as well as economic, physical and sexual abuse, stalking, entry into aggrieved person's residence without his or her consent, verbal and emotional abuse and any other repressive or abusive behavior towards the aggrieved person, constitutes domestic violence.
A person aggrieved of domestic violence may apply to the Court of Magistrate for seeking relief. The Court shall fix the first date of hearing within three days from receipt of application and shall dispose of the case within thirty days. The Court on being convinced that domestic violence has taken place may pass 'protection order' in favor of aggrieved person and prohibit the accused from committing domestic violence, aiding or abetting such violence, entering the place of employment or education of aggrieved person etc. The Court may also pass 'residence order' to restrain the accused from dispossessing or in any other manner disturbing the possession of the aggrieved person from household and to restrain him from entering the household. The Court may also direct the accused to secure alternative accommodation for the aggrieved person. A number of other remedies and steps have been enumerated which may be taken by the Court to ensure protection of the aggrieved person.
The Court may, at any stage of the case, order the defendant to pay monetary relief to the aggrieved person for the expenses incurred by him or her in terms of loss of earning, medical expense, loss of property and the maintenance of the aggrieved person as well as his or her children under family laws.
If the aggrieved person is a child, the Court may give him or her in the custody of a person appointed in accordance with Guardians and Wards Act, 1890; and if such person is an adult, the Court may give him or her in temporary custody of a service provider, which may be a government facility or registered voluntary organization.
In case of violation of protection order, the accused shall be punishable with imprisonment which may extend to one year but shall not be less than six months and with fine which may not be less than one hundred thousand rupees. The amount of fine so recovered shall be given to the aggrieved person. The penalty shall double for a subsequent breach of protection order.
The Bill also asks Provincial Governments to constitute Protection Committees in every tehsil for the purposes of this Act. The Protection Committees shall comprise of one Police Officer male or female of the rank of Sub-divisional Police Officer, a female SHO and two women councilors. Protection Committees have been empowered to perform a number of functions including informing the aggrieved person of her or his right, assisting him or her in obtaining medical treatment, assisting him in relocating to a safer place, assisting him in preparation of and filing of any application or report under law and filing it on his or her behalf, keep official record of incidents of domestic violence.
Provincial Government shall also appoint a Protection Officer in each tehsil who shall report incidents of domestic violence to Protection Committee, make application to the court on behalf and desire of aggrieved person, ensure legal aid to the aggrieved person, to get aggrieved person medically examined and perform such other duties as are mentioned in the Bill.
The government and private institutions working as service providers are also sought to be protected under privileges and immunities available to public servants and shall have the powers to record incidents of domestic violence, get the aggrieved person medically examined and ensure safety and assistance of aggrieved person.
The Bill provided that false information about commission of domestic violence shall be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.
Existing Law and Practice: Currently there is no distinct law on domestic violence. In case of an incident like this the matter is dealt with in accordance with Pakistan Penal Code, 1860. The Bill itself had enlisted certain offences like hurt, assault, criminal force etc. in the definition of domestic violence with reference to Pakistan Penal Code.
Through Family Courts (Amendment) Ordinance 2002, certain offences have already been brought within jurisdiction of Family Courts where one of the spouses is victim of an offence committed by the other. Such offences include: causing head or face injury without exposing bone of the victim (shajjah Khafifa); causing an injury which ruptures skin and causes bleeding (damiyah); wrongful restraint; wrongful confinement; assault or criminal force other than on grave provocation; and uttering words, making sounds or gestures or exhibiting objects with an intention to insult the modesty of a woman.
Observations: The Bill seeks to establish a whole new framework against domestic violence. It provides for constitution of Protection Committees and appointment of Protection Officers. It authorizes the Courts of Magistrate of first class to take cognizance of incidents of domestic violence and make decisions on application of aggrieved person or a person authorized by the aggrieved person in this behalf. The Bill empowers the Court of Magistrate to exercise certain powers of District Courts under Guardians and Wards Act, 1890 (section 10 of the Bill). A very prominent feature of the Bill is empowerment of non-governmental organizations and conferment of privileges and immunities upon them, available otherwise to public officers (in the meaning of section 21 of PPC).
Comments: Domestic violence is a reality of practical life, which exists in all cultures and societies in one form or the other. It is not confined to societies which lag behind in terms of literacy, employment opportunities, legal remedies and even women empowerment. Most developed countries and regions of the world with established and effective legal mechanisms have failed to check the menace successfully. Some studies in these countries, on the contrary, suggest that incidents of domestic violence have increased during recent years.
The Bill to prevent the incidents of domestic violence and to protect the victims had been prepared on the presumption that such incidents are compounded because they fall in the private domain and therefore suggests that bringing the issue into public domain shall diminish or at least reduce such happenings.
First impression that a reader of the Bill receives after one simple reading, is that the Bill does not suggest any measures to prevent domestic violence. Its provisions focus on post-violence situation and the Court, Protection Committees, Protection Officers and Service Providers are all supposed to come into action once a person has been subject to domestic violence. Thus the Bill saw domestic violence as mere criminal in nature and not as a social curse culminating in various offences; it therefore sought to deter the offences through punitive action in absence of any reformatory framework whatsoever.
Acts which formed definition of domestic violence in the Bill can be classified in different categories:
(a) Certain acts of violence may leave a physically tangible consequence. If hurt is caused, assault is made, criminal intimidation or criminal use of force has taken place or the accused has intended through this act to insult the modesty of a woman, all such cases may have some evidences as well as witnesses. In some cases medical report may help and in others circumstantial evidence too may lead to a conclusion. Such cases may effectively be dealt with under normal procedure in Pakistan Penal Code 1860 and the Code of Criminal Procedure 1989.
It is however pertinent to mention here that like others, aggrieved by another offence, the victims of domestic violence too have to face the lethargic, unsupportive, obstructive and even demeaning attitude of law enforcement agencies, i.e. police in this case. Most aggrieved persons do not dare to approach police to seek relief for the wrong done to them and try to evade or compound. The Bill too did not suggest involvement of existing law enforcement mechanism because of the fears associated and had to resort to institution of case through complaint in the Court and to constitute new institutions with same immunities and privileges as the police officers enjoy.
The Bill also had to empower NGOs with same powers, which may not be advisable otherwise. It is therefore paramount to reform police structure and conduct. This shall take care of one part of the definition of domestic violence without constitution of new and complex mechanism.
(b) 'Willful or negligent abandonment of the aggrieved person' has also been mentioned to constitute domestic violence. Section 328 of Pakistan Penal Code 1860 provides that if a father or a mother or any other person having the care of a child under twelve years of age, abandons him, then he or she shall be punishable with imprisonment of either description which may extend to seven years or with fine or with both. If a person does not come in the purview of section 328 and the capacity or power of a limb or organ of such person is permanently impaired, the person guilty of negligent abandonment shall be punishable under section 336 of PPC. If abandonment of a person in domestic relation with the accused has caused deterioration in health etc. then it shall have to be seen whether the accused was legally bound to maintain the aggrieved person or not.
If the aggrieved person is wife or child of the accused then the right of maintenance accrues under the law; but a person cannot be held responsible for abandoning a person whom he or she is not legally bound to maintain.
(c) 'Physical Abuse' had distinctly been mentioned in the definition of domestic violence along with hurt, assault, criminal force, criminal intimidation etc. The term had been defined as "any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal force and criminal intimidation". All acts and omissions mentioned in this definition are already punishable under Pakistan Penal Code and also enlisted among the acts comprising domestic violence separately. Existing law (i.e. PPC) has classified all possible forms of offences against human body in its Chapter XVI and has also enlisted among them such hurts which may only cause pain and leave no other physical effects, in section 337-L. The term 'physical abuse' in the Bill, did not in fact mean anything in practical terms.
Economic abuse has been classified as another offence which is regarded as an act of domestic violence. It has been defined to include "deprivation of economic and financial resources or prohibition or restriction to continued access to such resources which the aggrieved person is entitled to use or enjoy by virtue of domestic relations including but not limited to household necessities for the aggrieved person and her children, any property jointly or separately owned by the aggrieved person, payment of rental related to the household, and maintenance."
Fundamental question with respect to this definition is: What in fact are the resources "which the aggrieved person is entitled to use or enjoy by virtue of domestic relations"? The definition seems to answer this question by citing three of such rights but does not restrict such 'entitlement' to these three rights. The rights mentioned are: (1) the right to household necessities for the aggrieved person and her children; (2) right to use or enjoy ownership rights of a property jointly or separately held by the aggrieved person; and (3) the right to maintenance.
'Right' in the meaning of law is "a power, privilege, title etc. that someone may claim legally or that is morally due". One can seek the enforcement of a right through State machinery, only when such right is recognized by the law of that State. A right which is merely moral in character can, therefore, not be implemented by law. A person who invites a friend to dinner in a restaurant cannot be sued for his failure to do so, because the right accrued to the person invited was merely moral in character.
As far as rights arising out of domestic relationship are concerned, they are many and for each person against every other in the home. But such rights are generally moral in nature. The only legal rights in the present legal system are the rights of wife and children against husband and father respectively. A husband is bound to maintain his wife and provide her with all necessities of life according to section 9 of the Muslim Family Laws Ordinance 1961. A father is similarly under an obligation to maintain his son until he attains the age of puberty and his daughter until her marriage. Such rights can be enforced through Family Courts under section 5 of Family Courts Act, 1964.
The law does not acknowledge any other financial rights on the basis of domestic relationship. It does not, for example, oblige a son to maintain his parents even when they are elderly and poor. The law does not require a wife to spend over her husband even if he is unemployed and infirm. An orphan child cannot claim a right against his affluent uncle on the basis of kinship. It is however true that every person in domestic relationship with another owes some of his or her rights but such rights are merely moral in nature. They shall have to be acknowledged legally before seeking their implementation through law. It is therefore meaningless to coin a term of 'economic abuse' with respect to domestic relations.
If, however, legislation is made to introduce the Islamic concept of kafalah according to the recommendations of the Council of Islamic Ideology, then such abuse may be prevented by operation of law.
According to the Bill, sexual abuse includes "any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of the aggrieved person". Acts of sexual nature may amount to sexual intercourse or may restrict to advances and gestures. Sections 375, 376, 377, and Chapter XX of Pakistan Penal Code and Offence of Zina (Enforcement 0f Hudood) Ordinance, 1979 deal with different situations when an act of sexual nature has actually taken place. Section 509 of PPC deals with those situations when a person intends to insult the modesty of a woman through utterance of words, making of gestures and sounds or exhibition of some object. Thus almost all actions of sexual nature within or without home are effectively covered under existing provisions of Pakistan Penal Code.
Since the Bill sought to regulate affairs at domestic level, it is important to note that sexual relations within spouses are the essence of the family. An unqualified definition like the one contained in the Bill, shall have the potential to lead to introduction of 'marital sex' concept which shall in no case be acceptable in Pakistani society. It must be clarified that prevalence of chastity and modesty in the society are two major objectives that Islam achieves through institution of family. It is therefore imperative that sexual desires of individuals are satisfactorily met within their legitimate relations and no unwanted avenues are explored for the fulfillment of such natural needs.
Verbal or emotional abuse
Verbal or emotional abuse had been defined in the Bill as "any or persistent degrading or humiliating conduct of the accused towards the aggrieved person, including but not limited to (i) insult or ridicule; (ii) threat to cause physical pain; and (iii) threat of malicious prosecution."
"Threat to cause physical pain' falls within the definition of criminal intimidation defined in section 503 of Pakistan Penal Code. Criminal intimidation has separately been mentioned to constitute an offense of domestic violence. So its mention as verbal and emotional abuse is mere repetition.
Malicious prosecution is an offence and is to be tried and penalized under section 250 of the Code of Criminal Procedure, 1898. False or vexatious civil suits or claims are also disallowed under section 35A of the Code of Civil Procedure, 1908. Threat to implicate someone in malicious prosecution may also fall within the meaning of section 503 PPC.
It must, however, be noted that there may not be any human relationship that extends to a longer period of time and still does not involve differences and disagreements. Such disagreements may also take shape of conflicts and feuds. This is very natural in any human relation and it is also natural that during a conflict, each of the parties utters sentences which may not be pleasing for the other. Such brawl and arguments are part of natural human discourses and should not be taken to constitute an offence at the very outset. In most cases the person saying something in such circumstances may not even mean them. It shall be really unwise to allow State's intervention into the affairs of family on the basis of such incidents and shall be more imprudent to suggest that the State may intervene even if such brawl had taken place only once. People vary from each other in their attitudes and approaches towards life.
A person may feel badly hurt by a word, other may enjoy it and still another may not bother about it . It shall, therefore, be very hard even for the Court to determine which words amounted to violence and which had been said as part of natural living within a family and were not meant to harm the feelings of the other.
'Stalking' in the meaning of the Bill meant "following, pursuing or accosting the aggrieved person against his or her wishes and watching or loitering outside or near the building or place where the aggrieved person resides or works for gains or carries on business or visits frequently."
It is a painful fact that women and especially young women have to face embarrassing situations during their movement in the public. Attitudes mentioned in the definition of 'stalking' are undoubtedly insulting and humiliating and need to be addressed socially as well as legally but they are not related to 'domestic violence'. It must be acknowledged that normally the acts constituting stalking are committed by strangers and very rarely by a person in domestic relationship with the aggrieved person. If legislation against stalking is made in context of domestic violence, the scope of the law shall be limited and this social scourge shall not be effectively prevented. Acts mentioned to constitute stalking may therefore be prohibited and made punishable through an amendment in section 509 of PPC.
On social level, the status of women as respectable part of society shall have to be elevated. It is true that acts like following, pursuing, accosting, watching or loitering by a person may not always be stopped by force of law. These are different human behaviors which are based upon morality and approach of a person to life. Apart from these internal factors, there are certain external factors which influence the approaches and thus conduct of people. A person living in a in a provocative environment, for example, may not be solely blamed for such behavior. A culture of modesty shall have to be promoted whereby the women as well as men abide by the limits enjoined by the religion and incorporated in the society through ages.
Any other repressive or abusive behavior
One very apparent feature of the Bill had been its inclusiveness. The definitions had not been exhaustive and every possible expression was used to widen the scope of the proposed law. This could be seen as strength of the Bill by the mover of the Bill but it, in fact, is the greatest shortcoming the Bill suffered from. Despite a list of more than fifteen acts and omissions that constitute domestic violence, the movers had not forgotten to include "any other repressive or abusive behavior" to give unlimited scope to the proposed law.
It is also interesting to note that each detail in the Bill meant to elaborate the concept of domestic violence has actually added to the ambiguity. Resultantly, no one could ever definitely tell what may constitute domestic violence in the meaning of the Bill. By virtue of this definition of domestic violence, even petty issues within home could be brought into public domain.
Mechanism for solving Domestic Violence issues
Mechanism provided in the Bill seems to have meant to solve the issues of domestic violence and settle the disputes that could have led to such violence. The Bill, in fact, presumes that once domestic violence is committed, either in the form of 'verbal or emotional abuse' or in the form of hurt, the point of no return is reached in a domestic relationship. The aggrieved person should take the matter like any ordinary dispute with some stranger; report it to the magistrate and initiate legal proceedings against father, mother, brother or any other close relative.
The Bill also presumes that 'service providers' shall prove more sincere and more genuinely interested in the welfare of a person than other persons from his or her family. It therefore suggests that a person who finds himself or herself victim of domestic violence should approach the Magistrate and the Magistrate may not only restrain the accused from committing any act of domestic violence but may also stop him from approaching the aggrieved person. The Court may ask the 'service provider' to inform the aggrieved person of his or her rights and to ensure safety of aggrieved person. Similar functions have been prescribed for the Protection Committees and Protection Officers. None of these functionaries, i.e. the Court, Protection Committee, Protection Officer and Service Provider, has been tasked to attempt a reconciliation or compromise between the parties and eliminate the cause of difference.
It is, perhaps, for this reason that the Council of Islamic Ideology had expressed its reservations over passage of the Bill from the National Assembly and had maintained that the Bill in its current form will fan unending family feuds and push up divorce rates.
This does not mean that all incidents of domestic violence should be dealt within private domain of family and no case should be lodged for any acts of violence within four walls of family merely because they are domestic in nature. Acts which cause serious consequences and amount to offences punishable under Pakistan Penal Code should not be condoned only on account of their place of happening or because the accused and the victim happen to be tied in a relationship.
Nevertheless distinction has to be made between a family affair and an offence and the distinction seems to be nicely incorporated in the law already in operation. Family is seen in the society as an institution with loosely defined yet commonly known distribution of privileges and duties and with a hierarchy based on age and nature of relationship. This hierarchy gives some persons a right over lives of others and this right does not violate the independence and self-determination yet it provides guidance based on experience and motivated by affection and love. The person getting such guidance feels himself or herself morally obliged to abide by the rules set out by his or her elders and such following is motivated by the respect such person has for the elders in the family. This is a social mechanism in which there is always room for arguments, disputes, conflicts and even quarrels.
Such disagreements and disputes in no way mean that parties to the conflict think ill for each other and the differences normally subside after a wave of arguments and the life goes on.
Family also has its own dispute resolution mechanism, which becomes operative without any foreign stimulus in case of a serious family feud. This mechanism proves to be a safeguard against disintegration of families and should therefore be given a chance.
In the current times, the family structure is going through a transformation especially in the urban areas and it is therefore responsibility of the State to regulate this indigenous alternate dispute resolution mechanism. The Legislation should bring into effect the direction of Quran made in verse 35 of chapter 4, whereby it has been ordained that in case of conflict between spouses one representative should be nominated by each of them who should strive for reconciliation between them. Same spirit had been adopted in the Arbitration Council under Muslim Family Laws Ordinance, 1961 and had proved a useful tool in settling such situations.
An earlier attempt to deal with domestic violence was taken through amendment in the Family Courts Act, 1964 in 2002. This had brought certain offences (as are mentioned above under existing law) within purview of Family Courts. These are the offences which are more likely to be committed in domestic feuds. Aim of the law was to help victims of violence at home to access the Courts directly and get their cases decided expeditiously and economically. The law did not include all offences against human body and left the more serious ones to be tried and decided as criminal cases in the ordinary course of law.
One shortcoming of the Family Courts Ordinance, 2002 was that it dealt only with those cases where the offence had been committed by one of the spouses against the other; the law did not provide a safeguard to other persons in domestic relationship with the offender. The law may be made more effective if an amendment is made in the Family Courts Act to amend section 5 and extend the protection of the law to all persons within family.
One important feature of Family Courts (Amendment) Ordinance, 2002 was that it had taken such cases intrinsically family-related and acknowledged that such incident may and do happen among spouses who must be granted an easy option to avail justice. Bringing such offences within jurisdiction of family Courts also enhanced the likelihood of a compromise or reconciliation between the parties through involvement of elders of the family.
The most startling thing about the Bill was that this Bill had gone through the processes of legislation and managed to get a nod from the National Assembly with all its shortcomings, repetitions and misconceptions. Even more surprising is that the feedback and suggestions were sought on the Bill after its passage from the Bill and concerned circles including the Council of Islamic Ideology had expressed their dissatisfaction over the draft. The government had then decided not to move forward and the Bill was allowed to lapse. Since the Government intends to introduce another bill on the same subject, following recommendations may be made for the legislators:
* Issue of domestic violence has to be comprehended within indigenous social dynamics and stereotypical solutions adopted in Western Societies must not be transplanted to put an end to it.
* Offences committed in home should be distinguished from family feuds involving harsh words and brawls. Serious offences should be dealt through normal Court procedures and minor offences through Family Courts. Natural manifestations of human life should, however, not be seen as offences and the family members should be allowed to continue their lives as natural without unnecessary intervention from the State.
* Family relations should be mobilized and motivated to play their natural role in case of a conflict in a home. Such efforts may be regulated through Arbitration Council. A vigilant legal cover should, however, remain available for any possible victims of domestic violence.
* Police and Court procedures have to be made friendly, responsive and efficient to deal with any untoward situation. Efforts must be made to restore the confidence of masses on State machinery. Attention should be focused on best utilization of existing institutions instead of establishing new ones.
* Section 509 of Pakistan Penal Code may be amended to check indecent practice of 'stalking'.
Establishing dignity and honor of women
Women's Honor Bill, 2009
The Bill "to establish the dignity and Honor of women in accordance with the teachings of Islam" suggests that the problem of violence against women should be dealt with through social awareness. Atmosphere of cooperation, sympathy, sincerity and loyalty should be promoted amongst women and men "instead of placing them as equidistant forces against each other". Citizens shall be encouraged and trained to focus on performance of their respective duties instead of snatching rights. Traditions of the Prophet Muhammad (Peace be upon him) with respect to his wives, daughters and general Muslim females should be propagated, which show his care and concern for womenfolk. The Bill also proposes that all types of violence against women at home and at workplace should be deemed cognizable offence. Mediatory Councils should be set up at the level of union council which should comprise of three individuals with capabilities to resolve domestic disputes.
All cases of domestic violence shall be decided by these Mediatory Councils which shall determine such punishment for the accused which may effectively check incidents of domestic violence in the society.
Mover has stated the objects and reasons of the Bill in these words:
"Whereas the women enjoy protection in the Islamic Republic of Pakistan in accordance with their religion and Constitution and a helpless and oppressed woman often becomes a victim of violence under the garb of traditional customs and practices. Therefore, the Bill seeks to achieve the protection and honor for women."
Observations: The Bill is a statement of guiding principles and raw ideas. It seems that no person with a legal background or understanding has remained involved in the preparation of the Bill. The Bill also seeks to outlaw "all types of violence against women at home and at workplace" but does not define the terms. It also provides that all acts of domestic violence shall be cognizable which means direct intervention of police in the affair. On the contrary the Bill also provides that Mediatory Councils, and not the Courts, shall have the authority to determine punishment for domestic violence. The Bill, however, does not prescribe how the Mediatory Councils shall exercise this authority and what powers shall they enjoy for execution of their orders.
Comments: Law is set of rules that creates rights, imposes corresponding duties and confers powers in a politically organized society and is backed by the State and its Constitution. Present Bill cannot be taken as such for legislation. It is in fact sort of statement of objectives and principles that should make basis of the law.
The Bill has, however, successfully realized that the ethos of Pakistani society is built upon Islamic principles and life of Prophet Muhammad (PBUH) is seen as source of inspiration and guidance in all walks of personal and public life. If traditions of the Prophet of Islam are propagated and people are made to realize what they owe to their women and what reward shall their tenderness towards women bring to them in the Hereafter, the status of women in the family shall rise even without a strict penal mechanism. It is, however, important that guidance available in the classical books by early scholars of Islam and precedents available in the conduct of Muslim rulers from seventh to nineteenth century are adopted and operationalized in consideration of present needs and circumstances.
* The Bill cannot be passed in its present form without fundamental changes. Nevertheless approach of the mover is very precious and needs to be considered more seriously.
Approach of a society, community or a nation towards women reflects in its social construct as well as its legal framework. The law establishes, stabilizes and nourishes a civilized society. It regulates human conduct with an authoritative force behind; creates rights and prescribes corresponding duties; defines the acts and omissions that constitute offences and at the same time provides penal measures and administrative framework for executing them. Thus the law provides a complete reformative framework for a society.
No law can, however, be self-sufficient. It needs an effective implementation mechanism for actualization of its ideals and achievement of its objectives. But the most important requisite for a successful legal system is the recognition, respect and support of the people whom it is meant to govern. While judiciary, executive and other organs of State play an extremely important role in giving the law the authority it requires to regulate the society, they can be successful only if the society is genuinely and sincerely willing to accept that authority. This, as has been noted time and again during preceding discussion, requires a law to be commensurate with the social construct, common beliefs and collective objectives of the society in order to gain respect and obedience.
Legislators, therefore, have to show a clear understanding of indigenous values and reflect that they are equipped with the vision required for leading the country to the common objectives of the nation. It is for the same reason that proceedings of national parliament of any country make strong indications about approaches, objectives and responses to the challenges of those who are at the helm of affairs in that country. Concern and understanding of legislators and their future vision can easily be ascertained from review of these proceedings. In a democratic country, national legislature is expected to reflect common conscience of the nation through legislation and policy formulation.
Present study shows that the members of national parliament are not naive towards problems faced by women but at the same time it indicates that their approach is not reflective of the local dynamics and the ground realities of society. True, that in some cases problems of women have rightly been comprehended and viable solutions have been presented, yet in most cases, stereotypical solutions suggested by international rights' movement in the context of Western cultures have been sought to be transplanted without regard to peculiarities of indigenous culture. Bill for prevention of domestic violence that could not make its way through parliament, despite its passage from National Assembly, is a candid example of the fact that any such attempt that overlooks native value framework and social behaviors cannot earn recognition and respect.
Along with this appreciation that the representatives of the nation have shown concern about issues relating women and family and have presented more than three dozen drafts in the National Assembly in this respect, the real commitment to these issues appears missing. During first twenty seven months (March 2008 - June 2010), almost half of the National Assembly's total tenure of five years, Parliament was able to make only two enactments which directly deal with problems faced by women. Two Ordinances were promulgated by the President but none of them could take form of permanent legislation through enactment by the Parliament.
Government had introduced four Bills on women and family related issues during first year of its tenure but all of them are still pending before National Assembly for legislation. No further Bill could be presented by the Government during 2009 and earlier half of 2010. The Bill on domestic violence was passed by the National Assembly but in spite of earning acclaim it formed basis of a new controversy and had to be abandoned.
The Government alone is not to be blamed for insensitivity and non-seriousness towards women. Private members from ruling and opposition parties had initiated a number of Bills in the National Assembly on women-related issues but none of these members seemed genuinely interested in their proposals, some of which needed urgent attention. This indifference of members of Parliament reinforced the general perception that a point-scoring game is on in the parliament where members and parties wish to take credit for political purposes but none seems actually concerned about plight of women in society.
While the number of Bills, presented in the National Assembly on women and family related issues, is impressive, these Bills have been submitted without proper research and attention. One Bill suggests addition of a provision which is already part of the law. Some others have shown contradictions and repetitions and reflect unawareness of legislators from the whole framework of law on issue they are concerned about.
Typographical and other mistakes of language on such a sensitive subject which should have been removed with a little more attention, show lack of interest and professionalism. This is more painful in view of the fact that the National Assembly Secretariat is bound to render 'every assistance' to the members on technical details of legislative drafts. One significant development to facilitate legislation has been made by establishment of Pakistan Institute of Parliamentary Services (PIPS) through Act III of 2008. It seems that either the Institute is not properly functioning or the Parliamentarians have not bothered to avail the research facilities and technical assistance offered by PIPS.
While discussing each proposed bill, we have given specific recommendations, in earlier pages; following are some general recommendation for effective legislation on women and family related issues with emphasis on enhanced sensitivity towards gender issues:
* Sacrosanctity of marriage contract and the rights and responsibilities arising out of it need to be propagated and emphasized through all available channels.
* Issues evolving within family should be resolved within family's own framework. The mechanism of Arbitration Council given in the Muslim Family Laws Ordinance, 1961 is a good model for settling family feuds. It is not only in observance of Quranic model but is also in accordance with social structure of Pakistani society.
* Concept of mubarat needs to be promoted in all such cases where spouses may find it hard to continue with their relationship as such. Awfulness and miseries arising out of divorce also need to be projected, simultaneously.
* Family is the basic unit of society and issues related to it can best be addressed through mechanisms at the grassroots. It is important that continuity and strength of local governments is ensured. It is unfortunate that these vital social and political institutions remain dysfunctional for years.
* Consistent monitoring of performance of different political parties is vital in any parliamentary system. An audit of promises has to be made and leadership has to be reminded of assurances it had given to people. Civil society organizations have a major role to play in this process.
* Introduction of new laws cannot solve the problems arising out of the poor Governance. This in fact multiplies the opportunities of corruption, blackmailing and misuse of power and authority. In this context, it is extremely important to focus on the role of Police and other public functionaries. Public servants and institutions have to be made responsive and responsible.
* Effective measures have to be taken to eradicate the evil of feudalism. All efforts should be made to ensure that education and employment opportunities are made available to inhabitants of all areas of the country. Reforms have to be made to prevent accumulation of wealth in few hands.
It has to be realized that the use of law should be the last thing to settle the social and, in particular, the family disputes. Introduction or use of laws disregarding the social institutions would only complicate the issues. Strengthening social institutions should therefore be an important focus while dealing with such issues; and all possible means should be used to create greater awareness, and provide education, training and counseling.
IPS Task Force This is second part of the IPS Study on the subject. The first one was published in Policy Perspectives, July-December 2010 issue. IPS Task Force started functioning in December 2009 and concluded first part of its study in June 2010. It comprised of Akseer Ahmad Abbasi Advocate, Amir Abdullah Advocate, Asifa Imdad Advocate, Asma Mushtaq Advocate, Professor Habib-ur-Rahman Asim, Khalid Rahman (Chair), Maroona Nazir Advocate, Nadeem Farhat Geelani Advocate, Nadia Khadam Advocate, Saleem Raza Advocate, Sammar Javed (coordinator), Sehrish Saba Advocate, and Zafar-ul-Hasan Joya Advocate. Research and preparation of this document has been made by Nadeem Farhat Geelani. 1March 2008 to December 2010. 2One of which has lapsed after its passage from National Assembly.
Rest are still pending at various legislative stages (June 30th, 2010). According to the legislative procedure contained in the Constitution and the Rules of Procedure and Conduct of Business in the National Assembly 2007, a Bill relating to Federal Legislative List may be originated in the National Assembly or the Senate. The Bill is reviewed and scrutinized by the concerned Standing Committee of that House which presents report of its finding to the House. If one House passes the Bill with majority votes, it is transmitted to other House. If it is passed from the other House without amendment, then the Bill becomes a law after securing assent of the President. If the other House passes the Bill with an amendment, such amendment has to be accepted by the House in which the Bill had originally initiated.
If the amendment made by the other House is rejected or the amended Bill is not passed within ninety days, the Bill is considered in joint sitting of both Houses of Parliament. After passage of this Bill in joint sitting it is presented to the President for assent. 2003 CLC 1450 2000 CLC 1725 PLD 2001 Lah 188 2003 CLC 1213 1990 CLC 1908 A person of full age and capacity (Black's Law Dictionary) 2000 CLC 1725 During period of iddat A mode of dissolution of marriage which takes effect through mutual consent of spouses. The offer for mubarat may from either of the spouses and when accepted by the other party, the dissolution is complete. (Principles of Muhammadan Law by D.F. Mulla) Sec. 10 of Family Courts Act, 1964 Section 9 of Family Courts Act, 1964 Language of the Statement of Objects and Reasons has not been changed.
Mulla, D.F., Principles of Muhammadan Law, Section 579 Sec. 2 of the Muslim Family Laws Ordinance, 1961 1981 CLC 78 Though a ward may not always be minor but since most cases relate to appointment of guardians for minor children, terms like 'custody of minor' and 'welfare of minor' are frequently used instead of 'custody of ward' and 'welfare of ward' etc. 1974 SCMR 305 Juridical interpretation of Shariah by Imam Abu Hanifa (699-765 CE) and his disciples PLD 1963 Lah. 534 PLD 1981 Lah. 393 Preamble of the Bill Daily Dawn, Karachi, December 25, 2009 Constitution (Eighteenth Amendment) Act, 2010 has amended the legislative procedure. According to amended section 70 of the Constitution, if a Bill is amended by the House of Parliament to which the Bill had been transmitted after its passage from the other House then the Bill returns to the House in which it had originated; so that the Bill is passed again with the amendment made therein.
If the amendment is rejected or the Bill is not passed within 90 days of its laying in that House, the Bill is considered in the joint sitting of the Parliament instead of Mediation Committee. The News, June 12, 2010 An administrative unit See for example Bureau of Justice statistics on domestic violence in USA http://bjs.ojp.usdoj.gov/content/intimate/ipv.cfm; and for an overview of the phenomenon in Europe visit http://www.eurowrc.org/01.eurowrc/04.eurowrcen /26.en_ewrc.htm (both accessed on June 22, 2010) More discussion on this point follows Black's Law dictionary It is a concept peculiar to Islamic social system whereby every earning and affluent individual has been ordained protection and maintenance of certain other individuals within family including elders, minors and women. See Khurshid Ahmad, 1974, Family Life in Islam,.
Leicester: Islamic Foundation. Council of Islamic Ideology, Final Report on Examination of Laws, Dec. 1996: Islamabad, pp. 269, 291-293 Daily Dawn, Karachi, August 25, 2009 The News, June 12, 2010 Preamble of the Bill 'Criminal Law (Amendment) Act, 2010' and 'Protection Against Harassment of Women at the Workplace Act, 2010' 'Code of Criminal Procedure (Ame dment) Ordinance, 2007' and 'National Vocational and Technical Education Commission Ordinance, 2009' Muslim Family Laws (Amendment) Bill, 2008; Guardians and Wards (Amendment) Bill, 2008; Code of Criminal Procedure (Amendment) Bill, 2008; and National Commission for Human Rights Bill, 2008 Private member is a Member of the Parliament who is not a minister (Rules of Procedure and Conduct of Business in the National Assembly, 2007) Rule 118 (5) of the Rules of Procedure and Conduct of Business in the National Assembly 2007